CAN THIS EMPLOYEE’S JOB BE SAVED?

Here are the facts. Marisa, a unit employee, came to you a few minutes ago with a copy of an adverse action letter proposing to fire her for a chronic leave problem. According to the letter, she had taken 11 weeks of leave over the last year, generally for a series of medical issues. She had enough annual and sick leave to cover eight of those weeks and her supervisor gave her a week of leave without pay after she ran out of annual and sick. But, the remaining two weeks were charged to AWOL. Marisa also gave you copies of four documents she sent her manager from medical professionals in which each said she needed to take time off to deal with her illness. These accounted for all but a week of her absences. When you asked if any of her leave was covered by FMLA, she said she never asked for it and the manager never brought it up.

After Marisa left, you called the steward in her work area and found out that a few months ago Marisa’s husband was hit by a car and killed while the two of them were crossing the street in front of the federal building. The steward mentioned that it was commonly known she has been very depressed since then and that there is a rumor that one day her office-mate and supervisor took Marisa to the hospital because they thought she was suicidal. She allegedly spent 24 hours there under observation. Finally, the steward mentioned that her absence has caused a lot of work flow problems in her group.

Before you get too cocky, remember that not long ago the MSPB changed the rules to allow agencies to fire employees for taking an excessive amount of annual and sick leave even if the supervisor had approved the leave. (See McCauley v. Dept. of Interior, 116 MSPR 484 (2011)) All the agency need show is that the employee was absent for compelling reasons beyond his/her control so that agency approval or disapproval was immaterial because the employee could not do the job. (See Cook v. Dept of Army, 18 MSPR 610 (1984)) It recently upheld the termination of an employee injured on the job who was unable to return to work after a year.

In case you are wondering what was in those medical documents, one from a county mental health counselor said “Marisa needs two weeks absence from work to deal with her depression.” The second from her family MD said, “Marisa needs a one week absence due to a severe illness.” The next two came from two different psychiatrists who used the same wording, “Marisa is suffering from dysthymia depression likely linked to the recent death of her husband and other unfortunate events in her recent life. It has significantly interfered with her ability to communicate or handle stress. I anticipate that she will need no more than four weeks of absence from work to undergo outpatient therapy.” So, can you think of a defense the union can raise to save her job?

If you are thinking of claiming a defense around the disability laws, the odds of success are not high because there is no evidence that she ever asked for a reasonable accommodation, much less had one denied. It might be that you can find a case of disparate treatment of Marisa’s situation in comparison to that of someone in another protected class, but there are not facts above even hinting at that. Moreover, based on what the steward said, she can’t perform the essential duties of the job. If you are thinking of attacking the manager as heartless, that will make for good theater, but the law gives management the right to be heartless if it promotes the efficiency of the service. But, if you are thinking of alleging that management made a mistake by not placing her on FMLA leave even though Marisa never asked for it, you are on to something.

The FMLA does not require employees to ask for that leave by name. Although the courts are still fleshing out this part of the statute, all an employee needs to do is make management aware that he/she has a serious health condition that could qualify for FMLA. Once management does have knowledge of the employee’s potential qualification for the leave, it is obligated to inform the employee of his/her FMLA rights and give him/her an application form to complete. If it does not, the employee can claim retroactively that the leave should have been protected under FMLA, and once it is that statute prohibits an employer from punishing the employee for taking the leave. So, the success of this defense will depend on the union’s ability to show that Marisa’s manager did have sufficient knowledge that her absence could have qualified her for FMLA protection.

(As always, we want to repeat that no one should ever rely on what appears in FEDSMILL.com as legal advice. It is not. If you confront a situation and are unsure of what to do, contact a competent attorney in the field if your union has not already assigned you one.) However, here is what you might take away from reading cases in this area of the law. The medical documents saying she was suffering from depression or a severe illness might not be enough. Some courts have said the employee needs to give the agency more details about the illness and the documentation must indicate when the employee will likely be able to return to work. However, things such as the well-known death of her husband, the recurring illnesses due to depression, the specificity of the two psychiatrist’s documents, and the supervisor possible involvement in having her hospitalized as an emergency should help make Marisa’s case. There is an interesting discussion of the adequacy of the employee’s notice in section II.B.1 of a 2010 circuit court case known as Murphy v. Federal Express National LTL (618 F.3d 893). Another source is a recent posting from the folks at benefitspro.com about the employer’s obligation when it knows the employee needs leave to deal with a serious health condition. In that case the employer’s failure to act properly resulting in the employee getting $300,000 in damages.

So, it appears that the union can defend Marisa by alleging that the employer failed to comply with the law and in the process interfered with Marisa’s rights under the law. Given that Marisa has only taken 11 of leave, none of them can be used to discipline her because FMLA provides 12 weeks of coverage over 12 months.

If you find yourself defending an employee who took non-FMLA leave related to any health condition, keep this in mind.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.